SEC fined a large commercial bank for failing to disclose that it only
recommended hedge funds that paid a portion of the management fee back to the
bank. The bank marketed a robust due
diligence process conducted by a purportedly independent, in-house research
group performing a multi-step due diligence process to select hedge funds from
an “extremely large universe.” In fact,
the bank only recommended hedge funds that paid back management fees that it
called “retrocessions.” Although the
bank disclosed that it might receive revenue sharing and the amount actually received
from each hedge fund, the actual due diligence process did not comport with
marketing promises. The bank, which is
not a registered adviser or broker-dealer, was charged with violating the Securities
Act’s anti-fraud provisions (17(a)(2)).
Check the marketing team’s enthusiasm at the door. The SEC doesn’t allow firms an exception from the securities laws for product hype, regardless of how clients/investors may perceive the statements. Rather than caveat emptor (buyer beware), caveat venditor (seller beware) governs sales of securities products.
It is unclear how much due diligence is enough, but an investment that promises a 1000% return likely requires more than a few phone calls. When financial professionals recommend a losing investment, they bear the burden of proving that their recommendations and due diligence satisfied their fiduciary and/or suitability obligations.
OUR TAKE: Next May might seem like a long way off, but the work required to implement this fifth pillar will be significant. We recommend following FINRA’s guidance and using the FinCEN form as a starting point.
A municipal underwriter was fined and censured, and its principal was suspended from the industry, for failing to conduct adequate due diligence. The public disclosure documents for the bond offerings at issue made misrepresentations about compliance with Continuing Disclosure Agreements. The SEC faults the underwriter for failing to conduct due diligence to determine the (in)accuracy of those misrepresentations, including its failure to check the Electronic Municipal Market Access website maintained by the MSRB. As a result, the underwriter violated several provisions of the securities laws by failing “to form a reasonable basis for believing in the truthfulness of the [issuer’s] assertions that [it] had complied with its prior CDAs.”
OUR TAKE: Market participants have an affirmative obligation to conduct due diligence on issuers and their disclosure statements. This obligation applies to underwriters, administrators, lawyers, consultants, and auditors, who, since the Madoff scandal, have found themselves in the regulatory cross-hairs as market watchdogs.